European Court of Human Rights Rules on Amnesty and Double Jeopardy

On May 27th, the European Court of Human Rights ruled on one of the more contentious issues in the international criminal law and transitional justice sphere; namely whether political amnesties pose a barrier to subsequent legal prosecution by domestic legal systems. In Marguš v. Croatia, a decision of the Grand Chamber, the Court gave a wide-ranging set of views on the status and practice of Amnesty laws in general as well as addressing the specific case before it.

The facts were broadly uncontested. Fred Marguš, a Croatian national, was first indicted in 1993 on four charges—including murder, inflicting bodily harm, causing risk to life and assets, and theft—for his role in the execution of four civilians and the shooting and beatings of four others. He was convicted in Croatia in 2007, as a former commander of the Croatian army of war crimes against the civilian population. Following conviction Marguš complained in particular: that his right to be tried by an impartial tribunal and to defend himself in person had been violated by the domestic courts; and, that the criminal offences of which he had been convicted were the same as those which had been the subject of proceedings against him terminated in 1997 in application of the General Amnesty Act passed in Croatia following the war.  Comparatively, the passage of such broad ranging amnesties have been part and parcel of transitional ‘deals‘ in many post-conflict states.  These amnesties are frequently viewed as a means to dampen the spoiler effects of former combatants on domestic political processes, to encourage security sector reform as well as enable elite political compromises during peace negotiations.

In his application to the European Court, Marguš complained that he had been tried twice for the same offences, in violation of the protection against double jeopardy found in Article 4 of Protocol No. 7 to the European Convention, as well as violations of Article 6 of the European Convention itself. This is not the first time that the European Court of Human Rights has addressed amnesty issues, adding to a growing international court jurisprudence on the acceptability of amnesties. The Court has previously ruled on Amnesty laws including in Abdulsamet Yaman v. Turkey and Yesil and Sevim v. Turkey where it declared that amnesties, pardons, or statutes of limitations should not apply to criminal cases involving torture and ill-treatment. As others have noted, the Court has also said its earlier finding, in Ould Dah v. France, that amnesty is incompatible with States’ duty to investigate and prosecute acts such as torture “must hold true as regards war crimes” as well. In addition to extending that logic from Ould Dah, the Marguš case makes inroads on the ongoing practice of utilizing amnesties at the end of hostilities to enable or support contentious peace processes and to encourage combatants to lay down their arms on the basis of guarantees of non-prosecution.

In Marguš, the Court decided unanimously, that there had been no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial) of the European Convention. The Court found by a majority, that Article 4 of Protocol No. 7 (right not to be tried or punished twice) was not applicable to charges relating to the offences which had been the subject of proceedings against Mr Marguš terminated in 1997 in the course of applying the General Amnesty Act in Croatia. At the same time, the Court, unanimously, declared inadmissible the complaint under Article 4 of Protocol No. 7 to the Convention as regards Mr Marguš’ right not to be tried or punished twice in respect of the charges dropped by the prosecutor in January 1996.

The Court found that there was a growing tendency in international law to view granting of amnesties in respect of grave breaches of human rights as unacceptable. Specifically, the Grand Chamber opined that:

The possibility for a State to grant amnesty in respect of grave breaches of human rights may be circumscribed by treaties to which the State is a party.  There are several international conventions that provide for a duty to prosecute crimes defined therein (see the Geneva Convention of 1949 for the Protection of Victims of Armed Conflicts and their Additional Protocols, in particular common Article 3 of the Geneva Conventions … and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment).

The Court’s position lends further credence to various international resolutions, recommendations and comments concerning impunity and the granting of amnesty. While the Court acknowledged that, so far, no international treaty explicitly prohibited granting amnesties it repeated language from prior judgements emphasising that amnesties contravene irrevocable rights recognised by international human rights law. In notable inter-system borrowing, the ECtHR framed its position by pointing out that Inter-American Court of Human Rights had found that granting amnesties in respect of perpetrators of war crimes and crimes against humanity was incompatible with States’ obligations under international law to investigate and prosecute war crimes.

Despite acknowledgement, pressed by an amicus brief from an eminent group of international lawyers to the Court, that granting amnesty can operate as a tool to end prolonged conflicts the Court seemed fundamentally unconvinced on this point.  The Grand Chamber stressed that emerging consensus from various international bodies, in particular the United Nations Commission on Human Rights and the Inter-American Commission on Human Rights, that the granting of amnesty in respect of grave breaches of human rights was an impingement on the integrity of those treaty guarantees. The density of soft law is hardening on the position that amnesties should not be granted to persons who have committed such grave violations of human rights and international humanitarian law.

The Court’s logic was given this context, a fresh indictment against Mr Marguš and conviction for war crimes against the civilian population, meant that the Croatian authorities were in compliance with the requirements of Articles 2 and 3 of the Convention and with the requirements and recommendations of other international mechanisms and instruments.

This case adds to the ongoing international jurisprudence on the use of amnesty laws.  While the Court did not definitively prohibit the validity of a properly constituted amnesty under the ECHR’s supervision, this case adds to the narrowing of permissive amnesty space under international law.  Given the borrowing we are seeing between domestic and international law systems, the implications of Marguš  reach out beyond Croatia and the European context, touching on multiple political and legal “deals” forged on the permissibility of the amnesty device before the permissive space started to narrow in.

[Editor’s Note: This post has been revised to include attributions for certain factual statements to Svetlana Bezinyan & Steve Kostas, Case Watch: European Court Rules on Amnesty and Double Jeopardy, Open Society Foundations, Apr. 24, 2013.] 

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About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).